Gorsuch: Roe Is a Precedent – Precedent Can Be Overruled, But You Start With a ‘Heavy Presumption in Favor of Precedent’

21 Mar 2017

During his hearing before the Senate Judiciary Committee on Tuesday, Supreme Court nominee Judge Neil Gorsuch stated of Roe v. Wade, “a good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other.” He also said that in general, “You start with a heavy, heavy presumption in favor of precedent. … And yes, in a very few cases, you may overrule precedent.”

Gorsuch was asked about the value of precedent. He started by saying he hasn’t made any promises on how he would rule, and doesn’t think it’s appropriate to do so. He continued, “One of the facts, one of the features of law that you have to decide it on is on the basis of precedent, as you point out. And for a judge, precedent is a very important thing. We don’t go reinvent the wheel every day, and that’s the equivalent point of the law of precedent.”

He further stated that the age of the precedent, the “reliance interest” built up around it, whether it has been reaffirmed, whether the doctrine around it has been built up, and its workability are important factors in evaluating precedent. He added, “You start with a heavy, heavy presumption in favor of precedent. … And yes, in a very few cases, you may overrule precedent.”

Gorsuch also said that his consideration of Supreme Court precedent wouldn’t be any different if he was confirmed that how he considers circuit precedent as a circuit judge.

Gorsuch was then asked about the specific case of DC v. Heller, which he said is a precedent, and that “as a good judge, you don’t approach that question anew, as if it had never been decided.”

Gorsuch was also asked about Citizens United and Hosanna-Tabor, and gave the same answer.

Gorsuch was then asked about Gideon v. Wainwright, which he said was a “seminal” and old ruling by the Supreme Court that has been “re-affirmed many times. There’s a lot of reliance interest built around it.” But that he couldn’t say whether he liked or disliked any decision. Gorsuch further stated that Gideon “deserves respect” as a “seminal” precedent.

He continued that “to come in and think that just because I’m new, or the latest thing, and know better than everybody who comes before me, would be an act of hubris inappropriate to the judicial role.”

Gorsuch was then asked about Bush v. Gore. He responded that it was also a precedent that deserves the same respect as any other precedent, and “has to be analyzed under the law of precedent.”

The questioning then turned to whether he thought Roe v. Wade was correctly decided. Gorsuch answered that Roe is a precedent that has been re-affirmed, and that “reliance interest considerations are important there. And all the other factors that go into analyzing precedent have to be considered. … So, a good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other.”

The questioning concluded with a query about Griswold v. Connecticut. Gorsuch stated that Griswold is a 50-year-old precedent with “obvious” reliance interest that has been repeatedly re-affirmed.